Stella Flour & Feed Corp. v. National City Bank

As defendant moved only under rule 103 and not under rule 106 of the Rules of Civil Practice, we limit consideration of the appeal to the rule under which the motion was made. However, paragraphs Seventeenth and Eighteenth of the complaint are clearly irrelevant and grossly prejudicial; and paragraph Sixteenth with nothing further added is purely repetitious. In addition, the clause “which are presently in the custody of the District Attorney of New York County ” in subdivision (a) of paragraph Twentieth is also clearly prejudicial. The rest of subdivision (a) and subdivisions (b), (c), (d) and (e) of paragraph Twentieth should be also struck as evidentiary and unnecessary to a plain and concise statement of the cause of action. This also requires striking the phrase “ in the following amongst other respects ” at the end of paragraph Twentieth.

The order appealed from should be modified accordingly.

Plaintiff may replead in accordance with this opinion within ten days from the date of service of the order to be entered herein. Settle order.

Dore, J. P., Cohn, Callahan and Botein, JJ., concur.

Order unanimously modified in accordance with the opinion herein and, as so modified, affirmed. Settle order on notice.